[10PacRimLPolyJ781] Japan's New Patent Attorney Law Breaches Barrier Between the "Legal" and "Quasi-legal" Professions: Integrity of Japanese Patent Practice at Risk?

Abstract:

Abstract: In order to increase the quantity of intellectual property related legal
services made available to the public, the Japanese Diet enacted a complete revision of
Japan's eighty-year-old Patent Attorney Law. Under the terms of the new law, which
became effective on January 6, 2001, benrishi (patent attorneys) have authority to greatly
expand their range of professional activities. The newly recognized activities encroach
upon the statutory monopoly long enjoyed by Japan's bengoshi (attorneys).
Furthermore, the new legislation gives the benrishi a professional domain that is
inconsistent with the profession's credential requirements. This Comment argues that the
revision is likely to have negative and unforeseen consequences. First, given the highly
regulated nature of Japan's professions, consumers, especially those the legislation was
intended to assist, will infer that benrishi have legal training consistent with their sphere
of authorized activities. This could put clients at a significant disadvantage in licensing
contract negotiations, arbitration proceedings and other situations where the opposite
party is represented by a bengoshi with extensive legal training. Second, benrishi will
now have significant incentive to "capture" clients and steer them away from litigation.
Conversely, bengoshi will have a new incentive to "capture" patent clients at the
application and prosecution stages of the process rather than at the licensing and
litigation stages. Given that the bengoshi can perform all levels of patent work but are
not required to have even a minimal science or engineering background, this outcome
would also put the best interests of clients at risk. Therefore, to preserve the integrity of
Japanese patent practice, the Japanese government should take steps to harmonize the
credentials of the benrishi and bengoshi professions both with each other and with
respect to the demands of the patent law regime or, in the alternative, roll back the
revision and shift the focus of reform to the bengoshi profession.